May a lawyer with matters pending before a judge offer the judge hospitality, such as inviting the judge to lunch or other social occasions?

Plain-English summary

The inquiry arose from a practice in which certain lawyers extended luncheon invitations to trial-court judges before whom they had matters pending (the appellate courts were not involved), including immediately after an oral argument and frequently after trials, without concurrently inviting opposing counsel. The committee applied DR 7-110, which bars a lawyer from giving anything of value to a judge (DR 7-110(A)) and from communicating ex parte as to the merits with a judge before whom an adversary proceeding is pending (DR 7-110(B)).

The committee reasoned that although a lunch may be a "thing of value," EC 7-34 condones gifts permitted by the Code of Judicial Conduct, which allows a judge to receive "ordinary social hospitality." It further held that the mere fact a lawyer and judge lunch together does not raise a presumption that forbidden ex parte communications occurred; absent positive evidence, the presumption is that both acted ethically. The committee recognized that judges, having been lawyers, naturally maintain social relationships with lawyers, and that erecting a social "iron curtain" between Bench and Bar would hamper the administration of justice.

The committee nonetheless emphasized the appearance-of-impropriety concern, quoting old Canon 3 of the Canons of Professional Ethics (marked attention and unusual hospitality uncalled for by personal relations subject both judge and lawyer to misconstruction of motive), Canon 2 of the Code of Judicial Conduct, Canon 9 of the Code of Professional Responsibility, and DR 9-101(C). It noted that a lay client reacts unfavorably to seeing the deciding judge lunching with opposing counsel just after the client's trial. The committee stated that lawyers who practice frequently before a court are not barred from ever offering hospitality while a matter is pending, but that it would not be unreasonable to expect them not to invite a judge to lunch during or immediately after the actual trial or oral argument of such a matter, and that too-frequent or excessive hospitality can itself create an appearance of impropriety to be avoided by both lawyers and judges.

In practice

Under this opinion, ordinary social hospitality between a lawyer and a judge is permitted and does not, by itself, indicate an ethical violation, because the Code of Judicial Conduct expressly allows a judge to accept ordinary social hospitality. Per the opinion, the conduct to avoid is hospitality that creates an appearance of impropriety: the committee indicated lawyers should not invite a judge to lunch during or immediately after the trial or oral argument of a pending matter, and that too-frequent or excessive hospitality can create such an appearance. The committee stressed that a lawyer's judgment and good taste are as important as the written rules, and that actual ex parte communication during such occasions would subject the lawyer to discipline.

Currency note

This opinion was issued in 1977 under the Code of Professional Responsibility and the then-current Code of Judicial Conduct, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions, and before later revisions to the Code of Judicial Conduct. The rules on contact with judges and on gifts to judges have since been recast (compare Model Rule 3.5 and the current Model Code of Judicial Conduct). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer ever take a judge to lunch while a case is pending before that judge?

A: The committee did not impose a flat ban; it recognized that ordinary social hospitality is permitted and that lawyers who practice frequently before a court usually have matters pending. The concern is the appearance of impropriety in particular circumstances.

Q: When should a lawyer not offer a judge hospitality?

A: The committee indicated lawyers should not invite a judge to lunch during or immediately after the actual trial or oral argument of a pending matter, and should avoid too-frequent or excessive hospitality.

Q: Does a shared lunch presume an improper ex parte communication?

A: No. The committee held that the mere fact a lawyer and judge lunch together does not raise that presumption; absent positive evidence, the presumption is that both acted ethically. Actual ex parte communication on the merits would, however, subject the lawyer to discipline.

Background and rules framework

The opinion applied DR 7-110(A) and (B) (giving things of value to a judge and ex parte communication), EC 7-34, Canon 9, and DR 9-101(C) of the Code of Professional Responsibility, alongside Canon 2 and Canon 3(A)(4) of the Code of Judicial Conduct and old Canon 3 of the Canons of Professional Ethics. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 7-110(A) and (B) (Code of Professional Responsibility): no giving things of value to a judge; no ex parte communication on the merits of a pending adversary proceeding.
• EC 7-34 (Code of Professional Responsibility): condones gifts permitted by the Code of Judicial Conduct, including ordinary social hospitality.
• Canon 9 and DR 9-101(C) (Code of Professional Responsibility): avoiding the appearance of impropriety and not implying improper influence over a tribunal.

Other authority cited:

• Code of Judicial Conduct, Canon 2 and Canon 3(A)(4); Canons of Professional Ethics, old Canon 3.

See also

• Okla. Bar Ethics Op. 123: An ex parte letter to a Supreme Court justice on a pending case
• Okla. Bar Ethics Op. 51: A lawyer appearing before a relative judge
• Okla. Bar Ethics Op. 162: Practicing in a partner-judge's court

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-292/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted July 22, 1977

SYLLABUS

Lawyers and Judges Should Exercise Care In Their Public and Private Social Relationships To Avoid Creating Any Appearance or Impression That A Lawyer Enjoys A Special Relationship With, Or Possesses A Particular Ability To Influence, A Judge, Which Might Affect Such Judge’s Discharge of His Judicial Responsibilities.

QUESTION SUBMITTED

“Is it consistent with the Code of Professional Responsibility and the Code of Judicial Conduct for Lawyers Having Matters Pending Before Judges to Offer Hospitality to Such Judges By Inviting Them To Luncheons or Other Social Occasions?”

OPINION

The origin of the inquiry is a practice allegedly followed by certain members of the Bar of extending luncheon invitations to judges before whom they have matters pending. (The members of the Supreme Court, the Court of Criminal Appeals and the Court of Appeals are not involved in this inquiry.) This was specifically alleged to have occurred on one occasion immediately after the presentation of an oral argument by one such lawyer, and is further generally alleged to also occur frequently after trials handled by certain lawyers. Opposing lawyers are not concurrently invited to participate in such lunches.

The applicable Disciplinary Rule is as follows:

“DR 7-110. CONTACT WITH OFFICIALS

(A) A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal.

(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

(1) In the course of official proceedings in the cause.

(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

(4) As otherwise authorized by law.”

Although a lunch or other hospitality may be considered to be a “thing of value” (DR 7-110(A)), EC 7-34, condones gifts permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, which allows (Subsection 4(b)) a judge to receive “ordinary social hospitality.” Furthermore, the mere fact that a lawyer and a judge have lunch together does not give rise to a presumption that ex parte communications forbidden by DR 7-110(B) and Section (A)(4) of Canon 3 of the Code of Judicial Conduct (which similarly forbids ex parte communications on pending matters) take place. Rather, the applicable presumption, in the absence of positive evidence, would appear to be that both the lawyer and the judge conducted themselves in an ethical manner. The inquiry does not allege that ex parte communications have in fact taken place in the course of these lunches. If such communications should occur, this would, of course, subject the lawyer to discipline, and, if frequent and habitual, could result in proceedings against the judge in the Court on the Judiciary.

It must also be recognized that since judges were lawyers before becoming judges, and continue to have a great deal of day-to-day contact with lawyers in the discharge of their judicial functions, it is understandable that many of their personal and social relationships would continue to be with lawyers. It would indeed be unfortunate if some sort of social “iron curtain” between judges and other members of the legal profession should be erected, because the administration of justice would be severely hampered if a spirit of cooperation and understanding did not flourish between members of the Bench and Bar. This understanding would be difficult to attain if lawyers and judges did not feel comfortable in ordinary social intercourse with each other.

However, the obvious problem which can arise in this regard is delineated, and its solution given in Canon 3 of the old Canons of Professional Ethics:

“3. ATTEMPTS TO EXERT PERSONAL INFLUENCE ON THE COURT

Marked attention and unusual hospitality on the part of a lawyer to a Judge, uncalled for by the personal relations of the parties, subject both the Judge and the lawyer to misconstructions of motive and should be avoided. A lawyer should not communicate or argue privately with the Judge as to the merits of a pending cause, and he deserves rebuke and denunciation for any device or attempt to gain from a Judge special personal consideration or favor. A self-respecting independence in the discharge of professional duty without denial or diminution of the courtesy and respect due the Judge’s station, is the only proper foundation for cordial personal and official relations between Bench and Bar.”

Canon 2 of the Code of Judicial Conduct provides, in pertinent part:

“A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.”

Canon 9 of the Code of Professional Responsibility reminds us that “a lawyer should avoid even the appearance of professional impropriety,” and DR 9-101(C) warns that “a lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal …. or public official.”

The very fact that the Board of Governors has received an inquiry complaining of the conduct of certain members of the Bar, and, by implication, of that of certain judges, raises a question as to whether the activities in question do not give an “appearance of impropriety.” This is particularly true when the luncheon takes place immediately after a case has been tried or orally argued before the judge accepting such hospitality. A lay client, who often finds it difficult to understand why his lawyer can continue to have a friendly relationship with his opponent’s counsel during the process of a trial, obviously reacts very unfavorably when he sees the judge who will decide his case in intimate conversation over lunch with the lawyer for the other side, just after the client’s trial has been completed and before the decision has been rendered.

In this regard, as in many other areas involving ethical questions, a lawyer’s judgment and good taste are as important as written rules. It is therefore hoped that this opinion will serve to remind all lawyers and judges of the importance of avoiding conduct which could leave the impression, albeit unjustified, that a certain lawyer possesses particular influence over, or enjoys a special relationship with, a judge, which could influence the latter in the discharge of his judicial duties. Even ordinary hospitality, under certain conditions, can leave such an impression.

It is recognized that lawyers who practice frequently before certain courts or other tribunals, may usually have matters pending decision, and it is not intended to imply that they may never offer hospitality to judges of that tribunal, so long as any such matter is pending. It would not, however, be unreasonable to expect those lawyers not to invite a judge of that tribunal to lunch during or immediately after the actual trial or oral argument of such a matter; this would avoid arousing suspicion on the part of opposing counsel as to whether ex parte communications are occurring, and distrust of the judge’s objectivity on the part of the layman litigant. Furthermore, too-frequent or excessive hospitality such as that referred to in old Canon 3 of the Canons of Professional Ethics quoted earlier) also can create an “appearance of impropriety” which should be avoided by both lawyers and judges.